Here are your rights and obligations under the Families First Coronavirus Response Act, ("FFCRA"), effective from April 2, 2020, through December 31, 2020.

This statute expired on December 31, 2020. However, under Section 286 of the Consolidated Appropriations Act, 2021, employers may take a payroll tax credit for providing emergency paid "sick leave" and paid expended "family and medical leave" into the first quarter of 2021 for two purposes: (1) to recover costs of providing required FFCRA leave in 2020, and (2) to voluntarily provide "emergency paid sick leave" and "emergency family and medical leave" through March 31, 2021.

Emergency Paid Sick Leave Act

All employees of employer with 500 employees or less, regardless of how long they've been employed, are eligible for emergency paid sick leave. Employees will be eligible if they are unable to work (or telework) due to a need for leave because:

1. The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19.

2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

3. The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis.

4. The employee is caring for an individual who is subject to paragraphs (1) or (2).

5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Also, an employee may take such a leave only if the employer otherwise has work available for the employee to perform.

Such paid sick time shall be at the employee's regular rate of pay, but not to exceed $511 per day and $5,110 in the aggregate for nos. 1 - 3, above, and $200 per day and $2,000 in the aggregate for nos. 4 - 6, above.

Employers that employ health care providers or emergency responders may elect to exclude such employees from the Emergency Paid Sick Leave Act. The USDOL has defined "health care provider" to mean employees who are "employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care."

Full-time employees are entitled to 80 hours of paid sick time.

Part-time employees are entitled to the number of hours the employee works on average over a 2-week period. If a part-time employee's schedule varies from week to week to such an extent that the employer cannot determine with certainty the number of hours the employee would have worked if the employee had not taken paid sick time, then the employer should use (1) the average number of hours the employee was scheduled to work over the prior 6 month period, or (2) if the employee did not work over the prior 6 month period, the employee's reasonable expectation at the time of hire of the average number of hours per day the employee would normally be scheduled to work.

An employer may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave, nor may an employer require the employee involved to search for or find a replacement employee to cover the hours during which the employee is using paid sick leave.

An employer cannot discriminate against an employee who has taken such leave, has filed a complaint or instituted a proceeding related to this Act, or has testified in such proceeding. An employer who violates this Act will be considered to have violated the Fair Labor Standards Act (20 U.S.C. s. 206).

Emergency Family and Medical Leave Expansion Act

Under this amendment employees who have worked for an employer for 30 days prior to the leave may take an FMLA leave if they are unable to work (or telework) due to a need to care for their son or daughter under 18 years of age minor due to school or place of care has been closed or the child care provider is unavailable due to COVID-19.

The first 10 days of this EFMLA leave may be unpaid though that the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. Thereafter the employer must pay the employee at least 2/3rds of his/her regular rate of pay for the number of hours that the employee would otherwise be normally scheduled to work.

The total EFMLEA payment per employee for this ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.

For an employer with fewer than 25 employees the employee on such leave need not be restored to his/her prior position or to an equivalent position if (1) the prior position does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are cause by a public health emergency, (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and (3) if such reasonable efforts fail, the employer makes reasonable efforts for one year to contact the employee if an equivalent position becomes available.

This Expansion Act applies to any employer with less than 500 employees.

Under the FFCRA, covered private employers qualify for reimbursement through refundable tax credits as administered by the Department of the Treasury, for all qualifying paid sick leave wages and qualifying family and medical leave wages paid to an employee who takes leave under the FFCRA, up to per diem and aggregate caps, and for allocable costs related to the maintenance of health care coverage under any group health plan while the employee is on the leave provided under the FFCRA.

The Secretary of Labor has the authority to issue regulations to exclude certain health care providers and emergency responders from the definition of eligible employees and to exempt businesses with fewer than 50 employees when the imposition of these requirements would jeopardize the viability of the business as a going concern. The USDOL has defined "health care provider" to include employees who (1) directly provide health care services; (2) provide health care services at the direction or under the supervision of employees who directly provide health care services; or (3) provide services that are integrated with and necessary components to the provision of health care services even if they do not provide direct patient care. Employees may be health care providers even if their position does not require a license, registration, or certification. By regulation the following positions qualify as health care providers: physicians, nurses, nurse assistants, medical technicians and lab technicians. The following do not qualify as health care providers: information technology professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers.

According to USDOL's guidance, an employer with less than 50 employees is exempt from providing sick leave - but only as to employees who cannot work because their child's school or child care facility is closed due to COVID-19 related reasons - and expanded paid family and medical leave if doing so would jeopardize the viability of the small business as a going concern. A small business can claim this exemption if an authorized officer of the busines has determined that:

The provision of paid sick leave or expanded family and medical leave would result in the small business' expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee(s) requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsbilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Resources

Families First Coronavirus Response Act, (FFCRA) (Public Law 116-127)

US Department of Labor: Questions and Answers (FFCRA Questions & Answers)

US Department of Labor: Final Regulations (29 C.F.R. Part 826)

Massachusetts: Essential Services and Gatherings (Order)